Law is a funny old thing and surprisingly vague and imprecise a lot of the time.
I often get people emailing me with a problem and saying “What is the law which covers that?”. The answer to which is often “There isn’t one”. Not if you mean Act of Parliament law.
Non lawyers often seem to think that there is this vast body of statute which details everything, so that somewhere there will be an act of Parliament saying whether their landlord has to get rid of the wasps nest in the loft and how long their notice period should be.
Some of these things will be covered by statute but others won’t. What do you do then? This is where the Common Law comes in.
The theory of common law
The theory is that there is this great underlying body of common law which covers everything, and this is then, from time to time, changed (or perhaps clarified) by an Act of Parliament which lies on top of it. If for any reason the Act does not apply, then the underlying common law will.
So for example, there is a big act, the Housing Act 1988, which set up a statutory code governing rented properties created since 15 January 1989 (before that the Rent Act 1977 applied). But in some circumstances (eg if the tenant is a limited company, or the let is a genuine holiday let) the act does not apply. We then have a common law tenancy. One which is governed by the common law rules rather than those set out in the Housing Act.
Finding the common law
How do you find out what these common law rules are? The answer is often “with great difficulty”. The common law is Judge made, and has been built up over the centuries by Judges deciding cases. You need to find a case which applies to your situation, and then you may have your answer. But not always.
For example it is not the facts which are important but the reason for the decision (what lawyers call the ratio decidendi). If you have a situation involving a border collie and an engine driver, you are not necessarily looking for a report of a case involving a border collie. That case with the spaniel and the elderly lady may be more relevant. If indeed the point of law involves an animal at all. It could be all about the engine driver, or drivers in general.
Then there is the level of case. A case decided by the House of Lords (now the Supreme Court) is binding on everyone (in the UK that is) whereas a County Court decision is binding on no-one (although it may be persuasive).
So how do Judges decide a case if there is no Act of Parliament and no relevant case law? The theory is that there is an answer. They just have to find it, as Michaelangelo found the statute inside the block of marble.
- They look at case law covering similar situations
- They look at custom and practice (often going back many years)
- They look at what courts have decided in similar situations in other countries (particularly those with common law legal systems)
- They look at respected academic legal writings, government and industry reports, and perhaps reports in Hansard
- They consider what would be fair and just in all the circumstances
- Sometimes they also consider the impact of a certain decision and whether or not this is something they can do or whether it should be left to Parliament (e.g. Lord Hoffman in Birmingham City Council -v- Oakley  House of Lords)
Many important areas of law are almost completely Judge made. For example the law of negligence is based on a famous case called Donoghue v. Stevens in 1932.
But this is all a bit difficult for people just wanting to know whether they are entitled to ask their landlord to repair the fridge.
This is why I set up the Landlord Law site. So there is somewhere, at a reasonable cost, where people can go to find out answers like this (in a landlord and tenant context), and if there is no obvious answer, discuss it on the site forum.
But bear in mind that for some situations there may be no law or decision covering the point. It may need someone to take a case to the Court of Appeal or even the Supreme Court before we can discover what the answer is.
In this situation all you can do is act in a way which you think is fair and just, and hope for the best.
Photo by Hello. I am Bruce.